MOTION TO COMPEL THE GOVERNMENT TO COMPLY WITH ELECTRONICALLY STORED INFORMATION DISCOVERY GUIDELINES

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1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION 1:12 CR 20 UNITED STATES OF AMERICA vs. ) AVERY TED BUCK CASHION, III ) ) MOTION TO COMPEL THE GOVERNMENT TO COMPLY WITH ELECTRONICALLY STORED INFORMATION DISCOVERY GUIDELINES Comes now the defendant, Avery Ted Buck Cashion to move this Court to order the government to comply with Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases issued by the Department of Justice and Administrative Office of the United States Courts Joint Working Group on Electronic Technology in the Criminal Justice System (JETWB). The motion is made pursuant to Rule 16(d)(1)-(2), Federal Rules of Criminal Procedure. In support of his motion, this defendant shows unto the Court that: 1. The grand jury returned a true bill of indictment herein on April 4, Mr. Cashion is represented by Sean Devereux, Devereux & Banzhoff, PLLC, Asheville, North Carolina. 3. On December 5, 2012, a superseding bill of indictment was filed. George M. Gabler and Aaron Ollis were added as defendants. 4. The government had been investigating matters related to The Seven Falls Golf and River Club development for approximately two years before Page 1 of 10

2 seeking the bill of indictment. The underlying facts and legal issues involved in this matter are voluminous and complex. Prior to February 20, 2013, the government had provided 109,424 pages in discovery. While Mr. Devereux was involved in this matter pre-indictment, he had access to very few of the documents which have been provided in discovery. Nor was he familiar with or even aware of statements being provided by government witnesses, the accuracy of which, in significant instances, Mr. Cashion disputes. 5. On January 29, counsel for the parties in person and via telephone conference call participated in a setting conference in the chambers of Judge Martin Reidinger. During that conference, Judge Reidinger considered the input of counsel regarding the trial date. The parties discussed the 109,000 pages of discovery and the challenges which that volume of material posed in preparation for trial. Mr. Devereux s assent to 1 the May 6 trial date assumed that the bulk of the discovery had been provided. 6. Thereafter, based on the input of the parties at the meeting in chambers, Judge Reidinger set this matter for trial during the May 6, 2013 trial term. 7. On or about February 20, the government provided an additional 64,000 pages of discovery to defense counsel. At the January 29 conference, government counsel did not inform the Court or defense counsel that over a third of the discovery materials in the case had not yet been provided to the defendants. Counsel for a co-defendant has conducted a preliminary 1 Counsel understands that the Court may have selected the May 6 trial date regardless of the wishes of counsel but counsel s position was among a number of factors considered by the Court. Page 2 of 10

3 review of the 64,000 new pages which appear to contain many witness statements, s and other highly relevant material. Based upon this review, counsel feels that most of the 64,000 pages will have to be studied and reviewed for relevance. 8. The discovery materials which have now have been provided to defense counsel take up 16 separate compact discs. In essence, what defense counsel have on their hands are 174,000-plus undifferentiated pages, which are searchable only in the crude and time-consuming fashion discussed below. 9. The government has provided 16 discs with a software called IPRO ipublish Viewer 8.6 which the government contends renders the material searchable. The software is very limited in its application and unwieldy to use. It provides little or no assistance in digesting the discovery. The initial page of the software states, The IPRO ipublish viewer is a distributable runtime application designed for smaller cases of 30,000 pages or less. As noted, the discovery provided to date in this case is nearly six times that volume. 10. The IPRO ipublish software is further limited by the search procedures inherent in its design. In order to search the discovery materials for any one term, each of the 16 discs must be loaded separately onto the searcher s computer. The searcher must then wait for the software to boot up; enter the search term; and examine each responsive page. In the discovery as provided, multi-page documents exist as undifferentiated sequences of single TIFF (Tagged Image File Format) images. A searcher cannot identify a complete document without first scanning back from the Page 3 of 10

4 page on which the term is found to locate the first page of a given document and then scanning forward to find the last page. Because TIFFs are essentially digital photos, a TIFF document must be printed and then scanned to produce a unified digital copy of the document. This cumbersome process must be repeated 15 times for each disc. 11. Prior to the advent of electronic discovery, defense counsel could inspect documents in a context. Defense assimilation of discovery materials began with a discernable order. Documents were in flat files; files were in larger accordion files or boxes. All were labeled. It was possible to undertake a triage of documents. In a document-intensive case, critical documents e.g. witness interview summaries; law enforcement case analyses; lab reports were readily apparent and easily located. Large segments of documents could be set aside for later, more focused consideration or ignored as irrelevant. Defense counsel under a plea deadline could review a handful of FBI-302s and a six-page autopsy report and ignore at least for the moment three hundred pages of handwritten nursing notes. 12. The challenges presented in this case are not unique. In February, 2012, the Department of Justice and Administrative Office of the United States Courts Joint Working Group on Electronic Technology in the Criminal Justice System (JETWB) issued its Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases. 2 [Attached Exhibit A ] One of the primary goals of the working group was to encourage the exchange of data in industry standard or reasonably usable formats. 2 Also found at: Page 4 of 10

5 13. Specific recommendations of the ESI working group include: a. The volume of ESI in many cases may make it impossible for counsel to personally review every potentially discoverable item, and, as a consequence, the parties increasingly will employ software tools for discovery review, so ESI discovery should be done in a matter to facilitate electronic search, retrieval, sorting and management of discovery information (P. 1, Recommendations, Exhibit A.)[Emphasis supplied.] b. Subject to subparagraph (e), below, the producing party should produce 3 its ESI discovery materials in industry standard formats. (P. 1, Recommendations, Exhibit A.) c. Courts and litigants will continue to seek ways to identify cases deserving special consideration. While the facts and circumstances of cases will vary, some factors may include: (1) a large volume of ESI; (2) unique ESI issues, including native file formats, voluminous third-party records... ; and/or (3) multiple defendant cases accompanied by a significant volume of ESI. (Note 3, P. 2, Recommendations, Exhibit A)[Emphasis supplied.] d. Nonetheless, with the understanding that in certain instances the results of processing ESI may constitute work product not subject to discovery, these recommendations operate on the general principle that where a producing party elects to engage in processing of ESI, the results of that processing should, unless they constitute work product, be produced in discovery along with the underlying ESI so as to save the receiving party the expense of replicating the work. (Pp. 3-4, Recommendations, Exhibit A)[Emphasis supplied.) 14. In this case, the first 80,000 pages of discovery were initially provided in a 3 Paragraph (e): The producing party is not obligated to undertake additional processing desired by the receiving party that is not part of the producing party s own case preparation or discovery production. Page 5 of 10

6 format which could not be word searched. Thereafter, the government did provide a searchable format but each CD must be searched individually. 15. No outline, table of contents or indices remain from native files obtained from third parties by government agents nor were such tables or indices created by the government. 16. The issue of organization of documents produced in discovery was directly addressed by the ESI protocols: Table of contents. If the producing party has not created a table of contents prior to commencing ESI discovery production, it should consider creating one describing the general categories of information available as ESI discovery. In complex discovery cases, a table of contents to the available discovery materials can help expedite the opposing party s review of discovery, promote early settlement, and avoid discovery disputes, unnecessary expenses, and undue delay. (P. 2, Strategies, Exhibit A.) In United States v. Skilling, the Fifth Circuit approved a procedure whereby the government had made manageable a several hundred million page database by means of hot document identification and meaningful indices. 18. The ESI protocols recognize the importance of preserving the contexts ( native files ) in which documents were found: Forms of production. The producing party should consider how discoverable materials were provided to it or maintained by the source (e.g., paper or electronic), whether it has 4 th 554 F. 3d 529 (5 Cir. 2009). Page 6 of 10

7 converted any materials to a digital format that can be used by the opposing party without disclosing the producing party s work product, and how those factors may affect the production of discovery materials in electronic formats. (P. 2, Strategies, Exhibit A.) 19. Elsewhere, the working group recommends using the same file naming conventions and organization as the image file. (Page 7, Strategies, Exhibit A). 20. Based upon these guidelines, Defendant Cashion asks the Court to require the government to: a. Consult with defense counsel regarding the most efficient means of transferring all discovery materials; b. Render all of the discovery provided heretofore and hereafter in a meaningfully word-searchable format; c.. Provide a table of contents with for all discovery discs with Bates Number page references; or d. Provide a comprehensive index of the location of type of discovery document produced to date; or e. Return the discovery materials to the organizational or filing system in which the government has rendered and stored them. That is, the filing scheme which defense counsel would encounter if counsel were inspecting traditionally stored documents. 21. Defendant Cashion requests that the government provide the materials as requested in Paragraphs 20(b)-(e) within two weeks of the filing of this motion in order to allow counsel time to prepare for the May 6, 2013 trial date. 22. Without the relief sought in this motion, counsel cannot provide Mr. Cashion with the effective assistance of counsel guaranteed him by the Page 7 of 10

8 Sixth Amendment of the United States Constitution. th Respectfully submitted this 5 day of March, DEVEREUX & BANZHOFF, PLLC Attorneys for Avery Ted Cashion Suite 1100 The Jackson Building Asheville, North Carolina Telephone: (828) By: s/ Sean Devereux Sean P. Devereux (North Carolina State Bar #7691) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing motion was filed by means of the ECF Filing System upon: Mr. Don Gast Assistant United States Attorney U.S. Courthouse, Room Otis Street Asheville, NC Page 8 of 10

9 Mr. Michael Savage Assistant United States Attorney Suite 1650, Carillon Building 227 W. Trade Street Charlotte, North Carolina Mr. Mark Jones Bell, Davis & Pitt, PA Suite North Cherry Street Winston-Salem, North Carolina Mr. Tony Scheer Rawls, Scheer, Foster and Mingo, PLLC 1011 East Morehead Street Charlotte, North Carolina Mr. Chris Fialko Rudolf, Widenhouse & Fialko Buncombe County Courthouse 60 Court Plaza Asheville, NC Mr. Clark Fischer Randolph & Fischer Suite 304 Page 9 of 10

10 200 Brookstown Avenue, Winston-Salem NC Andrew Banzhoff Devereux & Banzhoff, PLLC Suite 110, Jackson Building 22 South Pack Square Asheville, North Carolina th This 5 day of March, By: s/ Sean Devereux Sean P. Devereux Page 10 of 10

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